STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRAMAY, INC., d/b/a THIRSTY ) PARROT and FRANCIS D. SAWYER, )

)

Petitioners, )

)

vs. ) CASE NO. 94-6914

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF ALCOHOLIC )

BEVERAGES AND TOBACCO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 25, 1995, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane Cleavinger.

APPEARANCES

For Petitioner: Francis D. Sawyer, pro se

84 Parkridge Drive Pittsford, New York 14534

Ocie Allen, Qualified Representative Post Office Box 10572

Tallahassee, Florida 32310

For Respondent: Thomas D. Winokur, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUES

Whether Respondent is entitled to a refund of license fees and late penalties.

PRELIMINARY STATEMENT

By letter dated May 24, 1993, Respondent informed Petitioner that the Division was unable to refund certain license fees and penalties in the amount of $5,512.50, since the fees were due in order to delinquently renew the license.

Petitioner disagreed with the Division's decision and requested a formal hearing. Petitioner's request was forwarded to the Division of Administrative Hearings.

At the hearing Petitioner offered the testimony of one (1) witness and offered five (5) exhibits into evidence. Respondent offered the testimony of one (1) witness and offered two (2) exhibits into evidence.

After the hearing, Petitioner and Respondent filed proposed recommended orders on November 8, 1995 and November 7, 1995, respectively. The parties' proposed findings of fact have been considered and utilized in the preparation of this recommended order except where the proposed findings of fact were cumulative, immaterial, irrelevant, or not shown by the evidence. Rulings on the parties' proposed findings of fact are contained in the appendix to this recommended order.

FINDINGS OF FACT

1. On September 6, 1988, a lien on License No. 68-01319, Series 4-COP, was recorded with the Division of Alcoholic Beverages and Tobacco (Respondent). The named lienholder was Francis D. Sawyer (Petitioner). Framay, Inc., d/b/a Thirsty Parrot was the holder of License No. 68-01319.

   
   

2. On May 21, 1990, an administrative action was filed by the Respondent against Framay, Inc., d/b/a Thirsty Parrot. The administrative action, alleged that Framay failed to maintain the license in an active status.

   
   

3. Framay never requested a hearing and a Final Order was entered on September 25, 1990, revoking License No. 68-01319.

   
   

4. On November 8, 1990, the Respondent filed a Notice to Show Cause alleging failure to comply with the terms of the September 25, 1990 Final Order.

   
   

5. On May 6, 1991, a second Final Order was entered revoking License No. 68-01319.

   
   

6. In February 1992, the Respondent was contacted by attorney Stanley Chapman as counsel to Petitioner, Sawyer. Petitioner claimed that the Respondent had failed to provide him a point of entry as lienholder to foreclose his lien, and sought to have the license "reinstated in escrow" in order to allow him to proceed in foreclosure.

   
   

7. After some discussion, the Respondent agreed to cooperate with Petitioner's efforts to foreclose by not opposing a summary judgement motion filed by Petitioner.

   
   

8. Normally, foreclosure of a lien on a revoked license is permitted only when the lienholder brings an action within 12 days of an order or revocation. Even though the time had expired, the Division nonetheless permitted Sawyer to foreclose on the license because Sawyer had a legitimate claim and the Division's interests would not be adversely affected by ignoring the 12 day time frame.

   
   

9. In August 1992, Petitioner, through his attorney Stanley Chapman, filed a complaint to foreclose his lienholder's interest in the license. Framay, Inc., d/b/a Thirsty Parrot, Wayne F. Sawyer and the Division were named as defendants.

10. The Petitioner foreclosed on License No. 68-01319 and a Final Judgment of Foreclosure and Transfer of Beverage License was entered on January 27, 1993.

    
    

11. Upon the entry of foreclosure, Petitioner, as required by the Respondent, filed an application for the delinquent renewal of License No. 68- 01319.

    
    

12. The delinquent renewal of the license required that past due license fees totalling $5,512.50 for the years 1990-1991, 1991-1992, and 1992-1993 be paid to activate the license. Petitioner requested that the Respondent waive the payment of delinquent annual license fees and penalties which the Respondent was seeking prior to issuing the license to any transferee.

    
    

13. The Respondent denied the request to waive applicable fees and required payment of delinquent renewal fees in the amount of $5,512.50.

    
    

14. Petitioner paid the fee under protest, claiming that the fee was not applicable to this transaction.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.57(1) and 561.27, Florida Statutes.

    
    

16. As the Petitioner and the party asserting the affirmative in this action, Sawyer bears the burden of proof to establish that he is entitled to a refund of the subject fees. Balino v. H.R.S., 348 So. 2d 349 (Fla. 1st DCA 1977).

    
    

17. Section 562.01(1)(b), Florida Statutes (1991), in effect at the times pertinent to this action, provided for annual renewal fees on 4-COP licenses with delinquent charges for late payment. In this case the annual renewal fee was $1,750.00 plus $87.50 late charges for three (3) years totalling $5,512.50.

    
    

18. Section 561.26(1), Florida Statutes (1993), states in pertinent part: ". . . no license shall be issued except an annual license. Licenses shall be renewed annually "

    
    

19. Section 561.27, Florida Statutes (1993), states:

    
    

    1. A licensee under the Beverage Law shall be entitled to a renewal of his annual license, from year to year, as a matter of course, in accordance with a schedule of

       license renewals as established by the division and by paying the annual license tax and giving any bond required of such licensee under the Beverage Law.

    2. A license may be renewed subsequent to the expiration each year only upon making to

       the division a delinquent application for renewal, accompanied by an affidavit stating that no sales or purchases of alcoholic beverages have been made subsequent to the expiration of the license, and upon payment of a penalty of $5 for each month or

       fraction of a month of delinquency, or upon payment of a penalty of 5 percent of $5 for each month or fraction of a month of delinquency, or upon payment of a penalty of 5 percent of the license fee, which- ever amount is the greater. Any license not renewed within 60 days of expiration will be cancelled by the division unless such license is involved in litigation; however, the division may allow a licensee to renew the license subsequent to the

       60-day period after good and sufficient cause for the delinquency has been shown to the division by the licensee. 1/

       
       

20. The statutes clearly require the Division of Alcoholic Beverages and Tobacco to charge renewal and delinquent fees. It is irrelevant that the license is inactive, in escrow or in foreclosure. Section 561.27, Florida Statutes. Renewal and payment of renewal fees are a necessary condition for a license to remain in existence.

    
    

21. The evidence demonstrated that renewal and delinquent fees were due on this license and were not waivable by the Division. Therefore Petitioner is not entitled to a refund of the fees paid.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly,

RECOMMENDED

That the Division of Alcoholic Beverages and Tobacco enter a Final Order denying Petitioner's request for a refund.

DONE and ENTERED this 30th day of November, 1995, at Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1995.

ENDNOTE

1/ 1995 Laws of Florida, Chapter 95-346 Section 7, amends Section 561.27(2) to eliminate the delinquent application requirement. The act also adds the phrase "or an administrative action" after "litigation." At the time relevant to this matter, a license could not be renewed after it expired without a delinquent application.

APPENDIX

1. The proposed facts contained in paragraphs 1, 2, 3 and 4 of Petitioner's proposed findings of fact are adopted in substance, in so far as material.

2. The proposed facts contained in paragraphs 5, 6 and 8 of Petitioner's findings of fact are subordinate.

3. The proposed facts contained n paragraph 7 of Petitioner's proposed findings of fact were not shown.

4. The proposed facts contained in paragraphs 1 through 16 of Respondent's proposed findings of fact are adopted in substance in so far as material.

COPIES FURNISHED:

Thomas D. Winokur, Esquire Dept. of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-1007

Ocie Allen

Qualified Representative

P. O. Box 10572 Tallahassee, FL 32310

Francis Sawyer

84 Parkridge Drive Pittsford, NY 14534

John J. Harris, Director Dept. of Business and

Professional Regulation Division of Alcoholic

Beverages and Tobacco 1940 North Monroe Street

Tallahassee, FL 32399-1007

Lynda L. Goodgame General Counsel

Dept. of Business and Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-1007

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-006914

Orders for Case No: 94-006914